At Large 

The East Bay sniper is still free. At least, so say some of the people who jailed the wrong man.

Page 7 of 9

But Sheriff Plummer, whose jurisdiction includes all the unincorporated areas of Alameda County and whose experienced investigators normally would have handled such a case, was blunt. If his agency had been in charge rather than Helmick's CHP, they would have never arrested Gafford. "I don't know any cop who thought he was the shooter," Plummer said. "Only Spike thought he was the shooter."


When Rogers announced on March 12 that he was not filing charges, it seemed for a moment that Gafford's bad dream had ended and he would be sent home to his family. But the CHP wasn't about to let him go. And Rogers perhaps inadvertently allowed the agency to save face when he informed San Joaquin County Deputy District Attorney Mary Aguirre that Gafford had violated his bail requirement on NA meetings.

Aguirre, who was prosecuting Gafford in his drug case, immediately requested a hearing with San Joaquin County Superior Court Judge Richard Mallett, who then convened a hearing and issued a ruling that allowed the CHP to keep Gafford in custody. Mallett raised Gafford's bail from $25,000 to $150,000 -- a sum far larger than his friends and family could raise.

But the March 12 hearing appears to have been illegal. Mallett had convened it without either Gafford or his attorney present. Gafford was still in custody in Alameda County, and neither Mallett nor Aguirre called Taylor until more than two hours after the hearing was over, Taylor later declared in court. The California Code of Judicial Ethics prohibits such "ex parte" proceedings in which one of the parties to the case is absent. "It shouldn't have been done without the defendant or the defense attorney present," said one California judge who spoke on condition of anonymity.

The whole matter soon became academic when sniper-case investigators turned to some powerful friends. The ATF requested that Gafford's small-time drug case be transferred to federal court, where sentences for drug crimes dwarf those meted out in state court. On April 1, a federal grand jury handed up a four-count drug indictment against Gafford, and he was transferred to Sacramento for trial.

Almost overnight, Gafford had gone from facing eight months in county jail to a potential ten to 51 years in federal prison. "It was devastating," Sativa said. "These are the people you are supposed to trust. I know my husband didn't go out and shoot at people. I kept thinking, eventually, he was going to come home. And they were going to say: 'I'm sorry, Mrs. Gafford. We made a mistake.' But they never did."

Unable to keep up with the mortgage payments, Sativa sold their house in June, and she and Savannah moved in with her parents in Milpitas. "It was hard," she said as tears streamed down her face. "My daughter still asks me today, 'Mommy, when are we going home?'"

All the while, the highway patrol continued to reassure the public that it had the shooter behind bars. In an April 25 story, the San Jose Mercury News quoted CHP spokesman Ziese as saying that Gafford remained their prime suspect.

On the surface, the transfer of Gafford's drug case from state to federal court seemed routine. The practice, known as poaching, has been on the rise in recent years. Typically, prosecutors poach a case so they can slap a harsh sentence on a major drug-lab operator or a big-time marijuana grower, or use the tough federal sentencing guidelines to take down career bad guys caught with small amounts of dope. But more and more often, the decisions about which cases to poach are based on arbitrary criteria, according to four veteran criminal defense attorneys interviewed for this story. "It has to do with the desires of an agency or individual law-enforcement officers and their relationship with prosecutors," said Assistant Federal Defender John Paul Reichmuth, who is assigned to Oakland federal court.

Federal prosecutors poached Gafford's case because the CHP and the ATF believed he was the East Bay Sniper, interviews and court records show. "If the highway patrol said 'This is what we want,' a prosecutor probably would do it as a courtesy," said one former federal prosecutor who asked not to be named. "Oftentimes, prosecutors will try to get the right results for the wrong reasons." Assistant US Attorney Richard Bender, who prosecuted Gafford in federal court, would not comment on the case, citing his office's longstanding policy. But Bender admitted in court documents that Gafford's small-time meth bust was "outside the heartland" of typical federal drug cases. And Gafford was not some known bad guy whom police had long wanted off the streets -- he had no criminal record. "Bender told me in the hall that the only reason they indicted him was because they thought he was the East Bay shooter," said Gafford's federal court lawyer, Assistant Federal Defender Matthew Bockmon.

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